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2014 DIGILAW 2148 (ALL)

DUKHRAN v. STATE OF U. P.

2014-07-21

RANJANA PANDYA

body2014
Mrs. Ranjana Pandya,J. 1. This revision has been preferred against the judgment and order dated 20.07.1989 passed by the IInd Additional District and Sessions Judge, Varanasi in Criminal Appeal No. 200 of 1987 maintaining the conviction of the revisionist under section 3 of the Railway Property ( Unlawful Possession) Act, 1966 and sentencing the revisionists to undergo rigorous imprisonment for one year. 2. Brief facts of the case are that on 16.07.1989 K. Bimal & Co. dispached six bales of staple chadars from Amritsar to Hawrah vide R.R. No. 537562. During the course of transit one bale of staple chadars was stolen at Moghalsarai yard. It was detected at the destination station on 27.07.1979 by Dalip Kumar Banerji, Head Goods Clerk, Hawrah Goods Shed No. 6 when he got the consignment from the wagon No. NR 69756. Dalip Kumar Banerji was also found the seal of the wagon to be in broken condition. According to the railway receipt ( RR) there ought to have been 116 packages but only 112 packages were found whereas four packages were missing, which were of the following description. 1. One wooden box bearing no. ASTH 58880/7. 2. A bundle of chadars bearing ASR 7562/5. 3. A bundle of chadars bearing No. ASR 7572/6. 4. A package bearing No. ASR 7578/1. 3. A description of the goods found short was entered in unloading register. A D.D. message was sent to Moghalsarai. The theft is alleged to have been committed in the night of 22.07.1979. It is alleged that on 23.07.1979 SI RPF Madhomani Tripathi received an information from some informer that some persons will be committed theft of railway property of Moghalsarai yard. Accordingly, SI, D.K.Home, ASI R.K. Mishra, ASI Bishambhar Pathak and ASI R.S. Upadhya and Head Rakshak Babu Ram along with detective dogs reached to the sought of the Basratia railway gate between 2 or 2.30 a.m. This gate is situated in between link Cabin and Ganj Khwaja railway station. The aforesaid police party was present 100 yards south to the aforesaid railway gate. They saw six persons putting some bundles at their heads going to village Dhoos. They were arrested by the police party with the help of the dogs. One of them made his escape good after throwing the articles in his possession. He was identified by ASI R.K. Mishra in the flash of torch as Andhi, resident of village Dhoos. They saw six persons putting some bundles at their heads going to village Dhoos. They were arrested by the police party with the help of the dogs. One of them made his escape good after throwing the articles in his possession. He was identified by ASI R.K. Mishra in the flash of torch as Andhi, resident of village Dhoos. The bundles of staple chadars which Andhi had thrown contained 23 chadars. The other arrested accused were Hansa, Hardeo, Mithai, Nakchhed and Dukhran. Hansa was found in possession of 36 Toosh chadars, Hardeo was found in possession of 32 chadars, Mithai was found in possession of 28 chadars, Nakchhed was found in possession of 43 chadars. A wooden box containing packets of colour was found from the possession of Dukhran. The chadars recovered from the possession of the accused were bearing trade mark and name "India Lamba Quality Toosh Karan Textiles Mills India". The wooden box also bore some railway mark. The chadars recovered from the possession of each of the accused were also bearing the marks. The recovered articles were separately kept and seizure memo was prepared by SI Madhomani Tripathi. The recovered articles and the arrested accused were broght to R.P.F. post. The recovery was entered in the G.D. by SI Madhomani Tripathi and a report was lodged by Madhomani Tripathi to the Inspector R.P.F. On the basis of the said report a case under section 3( a) of the Railway Property ( Unlawful Possession) Act was registered. The charges were framed against the accused, who pleaded not guilty. The prosecution in order to bring home the guilt to the accused examined SI Madhomani Tripathi as PW-1, ASI R.K. Mishra as PW-2, Dalip Kumar Banerji, Head Goods Clerk as PW-3, SI Basant Kumar Singh as PW-4, Satish Prakash partner of K.Bimal & Co. as PW-5, ASI D.K. Home as PW-6. The accused were examined under section 313 Cr.P.C., who denied the recovery from their possession. 4. On the basis of the evidence available on record, the learned Magistrate found the accused guilty and convicted the accused-revisionists Dukhran, Nakchhed and Hardeo convicted under section 3( a) of the Act and sentenced them each imprisonment of one year rigorous imprisonment. The accused Andhi and Hansa were acquitted. 5. Feeling aggrieved the accused Dukhran, Nakchhed and Hardeo preferred an appeal bearing Criminal Appeal No. 200 of 1987. The accused Andhi and Hansa were acquitted. 5. Feeling aggrieved the accused Dukhran, Nakchhed and Hardeo preferred an appeal bearing Criminal Appeal No. 200 of 1987. The Appellate Court after hearing the appeal, dismissed it and confirmed the conviction and sentence passed against the revisionists. 6. Feeling aggrieved, the revisionists have come up in the revision. 7. None was present on behalf of the revisionists even in the revised list. Heard learned AGA. 8. I have gone through the impugned judgment and order and also other materials on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence. 9. As a broad proposition, the interference may be justified ( a) where the decision is grossly erroneous; ( b) where there is no compliance with the provisions of law; ( c) where the finding of fact affecting the decision is not based on the evidence; ( d) where the material evidence of the parties has not been considered; and ( e) where the judicial discretion is exercised arbitrarily or perversely. 10. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in "State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri", AIR 1999 SC 981 , has held that the High Court while hearing revisions does not work as a Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. 11. Hon'ble the Apex Court in "Jagannath Chaudhary Vs. Ramayan Singh", AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi Vs. Ramayan Singh", AIR 2002 SC 2229 , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi Vs. State of Rajasthan and others" AIR 2002 SC 107 , it has been further held that while exercising the revisional powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. 12. Hon'ble the Apex Court in "State Of Karnataka vs. Appa Balu Ingale and others", AIR 1993 SC 1126 , has held that generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or if same are perverse in any manner. 13. Learned court below have considered all aspects of the matter and have come to the conclusion that there were no latches on the part of prosecution and the case was proved beyond doubt. In the statement under Section 313 Cr.P.C., the accused has denied the total proceedings but has not alleged that why he has been implicated. 14. Now it has to be seen whether the impugned order suffers from any illegality, irregularity or impropriety. As far as the allegations of fact are concerned, both the trial court and the appellate court have given a concurrent finding about the involvement of the accused in the offence. In the ground of revision it has been mentioned that there was no independent witness to prove recovery and arrest. This fact of the aspect has been dealt with by both the courts below. A ground has also been taken in the revision that the prosecution has failed to prove the recovered articles were belonging to the railway. Since the railway was carrier and goods have been entrusted to it. At this point of time it cannot be said that the railway was not in possession of the property. 15. Section 3 of the Railway Property ( Unlawful Possession) Act, 1966 runs as follows: "3. Since the railway was carrier and goods have been entrusted to it. At this point of time it cannot be said that the railway was not in possession of the property. 15. Section 3 of the Railway Property ( Unlawful Possession) Act, 1966 runs as follows: "3. Penalty for unlawful possession of railway property.--Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawful obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable- ( a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees; ( b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees." 16. A question also arises about source of light at the place of occurrence but it has come in evidence that SI Madhomani Tripathi was carrying torch, which was flashed at the accused and one accused, who had fled away was identified in the flash of the torch. There is nothing on record to prove that the police party had any enmity with the accused persons and there is nothing on record on the basis of which the statement of the prosecution witnesses be termed as untrustworthy. Thus, the judgment of the learned trial court and even that of the appellate court is based on material on record, is will reasoned and needs no interference resulting in dismissal of the present revision. 17. Accordingly, the revision is dismissed. 18. Let a copy of this order be sent to the trial court, who shall ensure the execution of the order.